2. Introduction
• US Fashion Market: $200 billion
▫ More than books film and music combined
More than books, film, and music combined
▫ Haute couture, mid‐market, mass market
• US is the pirate nation
US is the pirate nation
▫ EU, Japan, India, Australia have some form of design
protection
• Historical Context
▫ Fashion Originator’s Guild of America
▫ Recent US legislation
3. Negative IP Space
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• Fabric Print v. Cut/Design
• Patent/Design Patent
Patent/Design Patent
• Trademark/Trade Dress
• Copyright
• Right of Publicity
• Other industrial designs protected
Other industrial designs protected
▫ Architectural works
▫ Vessel hulls
▫ Semiconductors
4. Should Design Be Protected?
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• Purpose of IP Protection (U.S. CONST. art. I, § 8, cl. 8)
▫ To promote the Progress of Science and useful Arts by
To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries
• Piracy Paradox
▫ Induced Obsolescence Innovation
• Copying at the Expense of Creativity
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▫ Technology/Speed
8. Copyright
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• Useful Article Limitation/Conceptual Separability
▫ Mazer v Stein
v. Stein
▫ Brandir Intl., Inc. v. Cascade Pacific Lumber Co.
▫ Kieselstein‐Cord v. Accessories by Pearl
13. Extending Copyright
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• 70 years + life of the author
• WMFH 95 years + publication/120 years + creation
95 years + publication/120 years + creation
• Promoting innovation?
14. IDPPPA (S. 3728)
( )
• Innovative Design Protection & Piracy Prevention Act
• August 5, 2010 Senator Charles Schumer (D. NY)
August 5 2010 Senator Charles Schumer (D NY)
• 17 USC 13: Original Designs (Vessel Hull Designs)
• Three‐year sui generis protection for fashion design
Three year sui generis protection for fashion design
15. “Substantially Identical”
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• Protected designs are those with “a unique,
distinguishable, non‐trivial and non‐utilitarian
variation over prior designs”
• “Substantially Identical” designs are prohibited
• “Substantially Identical” is defined as
“Substantially Identical” is defined as:
an article of apparel which is so similar in
appearance as to be likely to be mistaken for
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the protected design, and contains only those
differences in construction or design which
are merely trivial.
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16. “Non‐Trivial”
• Designers must prove their design is a “non‐trivial”
variation over prior designs
variation over prior designs
• Does this restrict a design inspired by a past design?
• Does this restrict a design inspired by a public trend?
• Cannot use colors, and pictorial or graphic elements
imprinted on the fabric to determine the uniqueness
of a design
17. Registration Not Required
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• Fashion Designs would not need to be registered in
order to receive protection
order to receive protection
▫ Therefore, there is no initial Copyright Office
determination of valid design protection
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• The designer makes initial determination
▫ Marking designs as protected
▫ False marking penalties
• Over‐inclusion of designs protected?
18. Plead with Particularity
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• Designer would bear a greater burden at the time of
enforcement
▫ The design is protected;
▫ The defendant’s design infringes upon the protected
The defendant s design infringes upon the protected
design; and
▫ The protected design or an image thereof was
available to the extent it is reasonable to infer
defendant had access to the protected design.
19. Using Existing Jurisprudence
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• Substantial similarity
▫ Ordinary lay observer
Ordinary lay observer
▫ Borrowing from trademark law
• Access
• Functionality